What Is the Deadline for "Ungranting" a New Trial?
The headline to this post sounds like a question one might see on the appellate board-certification exam, which is coming up in a few weeks. So, in that spirit, let's do some multiple choice. Without peeking, try and select the correct answer from this list:
a. 105 days after the new trial order is signed;
b. 75 days after the new trial order is signed;
c. 30 days after the new trial order is signed;
d. There is no deadline.
e. None of the above.
I SAID NO PEEKING! The answer appears after the jump.
Until three weeks ago, the correct answer was "b." Now, it's "d."
In In re Baylor Medical Center at Garland (No. 06-0491) (orig. proceeding), the Texas Supreme Court overruled case law effectively holding—based on a now-repealed procedural rule provision—that a trial court could not vacate an order granting a new trial more than 75 days after the order was signed. In doing so, the Court placed new trial orders on the same footing as any other interlocutory ruling: they can now be vacated as long as the trial court retains plenary power over the case.
As the supreme court noted, "[n]ew trial orders are rare, and the long list of cases in footnote 8 [of the majority opinion] shows that trial judges often think better of them." Still, for appellate geeks and anyone wanting to become board-certified in civil appellate law, the new rule is something to know.
Todd, can we get partial credit for answering (e)? The trial court will eventually lose plenary jurisdiction, after all, so one might think that's the new deadline.
Some will argue, after a second trial, that the trial court can still "ungrant" the new trial if it decides the result of the first trial was fairer than the second. A good rule would be that a new trial can't be ungranted after there is a second trial, but I can't predict what courts will think about this as it comes up in the future.
Fair point, Jeff. Scenarios like that keep us in business, I suppose. Thanks for the comment.